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A landmark judgment (Ruiz Zambrano) at the European Court of Justice is finally being incorporated into UK law, making it easier for the British children of foreign parents to remain in the UK.

The judgment of Ruiz Zambrano, handed down in March 2011, explored the residence rights of families with a European Union child where the parents were from outside the EU.

The European Court of Justice clarified that in these circumstances, the parents should be granted the right to reside and work in that country in order to protect their child’s right to reside within the European bloc, as required by EU law.

In June 2011, the UK Border Agency (UKBA) issued a brief statement on its website stating it was aware of the judgment and was considering whether changes to UK legislation were required.

In September 2011, the UKBA published a much longer statement recognising the judgement created: “a right to reside and work for the sole carer of a dependent British citizen when that carer has no other right of residence in the UK”.

That statement, which has since vanished from the UKBA website, promised that UK law would be amended “in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement”.

In the meanwhile, the UK Border Agency has been issuing so-called ‘Zambrano parents’ with a certificate of application, enabling them to work but without granting them residence.

The situation has remained unchanged for the last 14 months, despite numerous overhauls to the UK’s immigration laws, including an extensive revamp of the European Economic Area (Immigration) Regulations 2006.

However, Zambrano parents will now finally be entitled to apply for and receive a residence card thanks to changes taking effect on 8 November 2012.

A new provision is being inserted into the EEA Regulations allowing for the issue of a ‘derivative residence card’ granting rights of entry and residence to applicants where the following requirements are met:

  • The applicant is the primary carer of a British citizen;
  • The British citizen is residing in the UK; and
  • The British citizen would be unable to reside in the UK if the applicant had to leave the UK.

The issue of a ‘derivative residence card’, which is different to a standard residence card, may eventually give rise to its own legal challenges. However, for the time being, life has just got a lot easier for Zambrano parents.

If you are affected by the issues raised in the article and require immigration legal advice please call our Immigration team on 020 7631 4141.

This article originally appeared on the Fisher Meredith website in October 2012.

Karma Hickman Associate Solicitor   +44 (0)20 7091 2879


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